We will not
sustain a protest challenging an agency's failure to solicit a
successfully performing incumbent unless the record shows that
adequate competition resulting in reasonable prices was not
achieved, or there is conclusive evidence that the agency
deliberately excluded an incumbent from the competition. E.g.,
Timberland Logging, B-282461, July 8, 1999, 99-2 CPD para. 10 at
3. Here, the VA received 12 proposals in response to the RFP, a
number more than sufficient to achieve adequate competition and
to support a finding of price reasonableness. Further, as
explained below, the record does not show that the agency
deliberately excluded Bestcare from the competition.
Bestcare argues that it was excluded due to the fact that "the
agency chose an outlet which is rarely, if ever, used for public
bidding," FedBizOpps. Protest at 1. Bestcare also states that
the VA did not notify incumbent contractors that the RFP had
been issued, that the program administrators were not aware that
the RFP had been issued, and that the RFP was not available
through the VA website. Comments at 1-2. Bestcare asserts that
"[s]uch secrecy suggests that the [VA] set out not to foster
maximum competition, but to reduce the number of bidders to a
minimum." Id. at 2.
We disagree. Far from being a rarely used outlet for the
advertisement of procurement opportunities, FedBizOpps is the
currently designated Governmentwide Point of Entry (GPE), "the
single point where Government business opportunities greater
than $25,000, including synopses of proposed contract actions,
solicitations, and associated information, can be accessed
electronically by the public." FAR sect. 2.101. Wherever
agencies are required to publicize notice of a proposed contract
action, they must transmit a notice of that action to the GPE.
FAR sect. 5.203(a). Beyond these requirements, there are no
further requirements to individually notify potential offerors,
or to post notice of a contract action on an agency's own
website. Finally, we also find it unremarkable that the VA
program staff were unaware that the RFP had been issued, as
contracting actions are not generally undertaken by the program
office, but by the agency's contracting office.
In sum, the record shows that the agency followed applicable
regulations by publicizing notice of the RFP on FedBizOpps where
it was publicly available to all interested offerors, and
received adequate competition in the form of 12 proposals. In
the absence of any conclusive evidence that the agency
deliberately excluded Bestcare from the competition, and in
light of the significant competition received in response to the
RFP, we see no basis to conclude that the agency failed to meet
its obligations. Interproperty Invs., Inc., B-281600, Mar. 8,
1999, 99-1 CPD para. 55. (Bestcare,
Inc., B-403585, November 23, 2010) (pdf)
PR Newswire is HHS's incumbent public relations assistance
contractor and this RFP is the agency's second effort to obtain
follow-on services. In its first attempt, HHS awarded a
sole-source contract to PR Newswire. Business Wire challenged
the award in a protest to our Office, in response to which the
agency took corrective action, including a planned
re‑examination of its requirements and an agreement to provide
Business Wire with a copy of the solicitation. Business Wire
withdrew its protest and we closed our file without further
action (B-311078, Feb. 5, 2008). HHS then extended PR Newswire's
contract on a month-to-month basis. On May 28, 2008, the RFP was
posted on the FedBizOpps website (http://www.fedbizopps.gov)
with a closing date of June 24. The contracting officer provided
notice to Business Wire, but to no other potential offeror. HHS
made award to Business Wire on August 1. After learning of the
award, PR Newswire filed this protest.
(Section deleted)
PR Newswire asserts that the agency was required to provide it
actual notice of the RFP's issuance. However, it cites no
authority for this proposition, and we are aware of none. As
noted by the agency, and conceded by the protester (Comments at
1), for proposed contract actions--such as this RFP--in excess
of $25,000, the agency is required to publish a synopsis and
solicitation information on the government point of entry (GPE),
accessed through FedBizOpps. Federal Acquisition Regulation
(FAR) sections 2.101, 501(a) and 5.102; see 41 U.S.C. sect.
416(a)(7) (2000) (electronic solicitation publication on GPE
meets requirements for accessibility of notice). Since
FedBizOpps has been expressly designated by statute and
regulation as the official public medium for providing notice of
contracting actions by federal agencies, and HHS published this
solicitation on that website, PR Newswire was on constructive
notice of the RFP. See CBMC, Inc., B‑295586, Jan. 6, 2005, 2005
CPD para. 2 at 2 (FedBizOpps website places prospective
contactors on constructive notice of contract awards); Aluminum
Specialties, Inc. t/a Hercules Fence Co., B-281024, Nov. 20,
1998, 98-2 CPD para. 116 at 2 (notice in Commerce Business Daily
(formerly the official public medium for identifying proposed
contract actions and now replaced by FedBizOpps) provides
constructive notice of solicitation and contents). There is no
further requirement that agencies provide actual notice to
prospective offerors.
Our conclusion is not changed by the protester's alleged
unsuccessful attempts to obtain solicitation information from
agency personnel. In this regard, PR Newswire asserts that, as
it performed its contract work, its staff made "repeated
inquiries" of HHS News Division personnel about when or if a new
solicitation would be issued, but it was never provided any
information about the RFP. Protest at 1. However, the protester
does not identify any specific HHS employee or dates when it
sought that information. In fact, it does not allege that it
inquired of anyone in the cognizant contracting office; it
states only that it asked news division personnel, none of whom
were responsible for issuing solicitations. Motion to Dismiss at
2. Since the protester was not seeking information from the
office responsible for the solicitation, and there is no
evidence that the agency actively or passively misled it about
the RFP, the agency's silence provides no basis for protest. PR
Newswire has neither alleged, nor provided evidence of, agency
bad faith in this regard.
Likewise, the fact that the agency furnished actual notice to
Business Wire provides no valid basis for protest. Again, the
agency furnished legally sufficient notice to all potential
offerors, and the fact that the agency also provided Business
Wire with actual notice pursuant to its proposed corrective
action, in response to the earlier protest, did not render that
notice inadequate. (PR Newswire
Association, LLC, B-400430, September 26, 2008) (pdf)
Allied learned of the solicitation through the July 18 synopsis
and, thus, as of that date, was aware of the August 20
anticipated closing time for the receipt of proposals. The
protester nevertheless did not contact the agency prior to the
closing time to inquire into the status of the solicitation, nor
did it contact the agency shortly after the closing time to
determine whether the closing time had been changed. Instead,
the protester waited approximately 7 weeks after the closing
time to inquire into the status of the procurement. This delay
was unreasonable. While, as Allied notes, an anticipated closing
time in a presolicitation notice may subsequently be extended,
it nevertheless serves to establish the rough time frame during
which a prospective offeror reasonably should expect to receive
the announced solicitation. Prospective offerors cannot ignore
the anticipated closing time when they are waiting to receive an
announced solicitation--or, it follows, when they are awaiting
the posting of a solicitation on a website. Rather, even where a
prospective offeror has specifically requested a solicitation,
see Wind Gap Knitwear, Inc., supra, as the anticipated closing
time approaches and then passes without its receiving the
solicitation, the prospective offeror is reasonably expected to
stop merely waiting and instead to take steps to actively seek
the solicitation. We believe this principle necessarily extends
to the circumstances here. While monitoring a website might
initially be a reasonable approach to obtaining a solicitation
that is to be posted there, we do not think it was reasonable
for Allied to continue doing so as the closing time approached
and passed, without at least attempting to obtain information as
to the status of the procurement; in this regard, as noted
above, the synopsis included the names, telephone numbers, fax
numbers, and e‑mail addresses of both the contract specialist
and the commodity business specialist involved with the
solicitation. We conclude that, notwithstanding the agency's
error in failing to post the RFP to FedBizOpps, Allied's
inability to compete was primarily the result of its failure to
fulfill its obligation to avail itself of every reasonable
opportunity to obtain the RFP. See Laboratory Sys. Servs., Inc.,
supra. (Allied Materials & Equipment
Company, Inc., B-293231, February 5, 2004) (pdf) |
